ATTORNEY GENERAL OPINIONS UPDATE 2017

Presented by:  Phil Carter, Beebe Garrard and Reese PartridgeSpecial Assistant Attorneys GeneralMississippi Attorney General’s Office

Jim Hood, Attorney General

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STATUTORY AUTHORITY FOR AG OPINIONS

MISS . CODE ANN. SECT ION 7-5 -25

HELPFUL WEBSITES

Overviewhttp://www.ago.state.ms.us/divisions/opinions-and-local-government-2/

Searchable Databasehttp://government.westlaw.com/msag/

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MUNICIPAL PRIMARY ELECTIONS

MS AG OP. , COLL INS (OCTOBER 2 , 2015)

MS AG OP., COLLINS (OCTOBER 2, 2015)

“The city clerk should emphasize to potential party candidates who file their statements of intent and filing fee before their party establishes a legitimate executive committee that there will be no primary unless such committee is in place or established prior to the qualifying deadline.”

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MS AG OP., COLLINS (OCTOBER 2, 2015)

“It is our opinion that the phrase “before an election” means that a county executive committee must assume the duties of serving as the temporary municipal committee prior to all critical stages of conducting a municipal primary e.g. the printing of the ballots, the appointment and training of pollworkers and the deadline for candidates to file their statements of intent and pay the filing fees.”

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CHANGING FROM A WARD ELECTION SYSTEM TO AN AT-LARGE SYSTEM

MS AG OP. , MILLER (JANUARY 20 , 2017)

MS AG OP., MILLER (JANUARY 20, 2017)

• Question: What are the steps to take to change from a ward system of voting for the election of aldermen to an at large system of voting?

• Answer: “The governing authorities of a code charter municipality may, by ordinance, change the municipal voting system from a four-ward, one at-large system back to an at-large system. However, an at-large system cannot be conceived or operated to minimize or cancel out voting strength of racial or political elements of the voting population.”

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MISS CODE ANN. SECTION 3374-36 (1942) (CHAPTER 491, LAWS OF 1950).

“In all municipalities operating under a code charter and having a population of less than ten thousand, according to the latest available federal census, there shall be five aldermen, which aldermen may be elected from the municipality at large, or in the discretion of the municipal authorities, the municipality may be divided into four wards, with one alderman to be elected from each ward and one from the municipality at large. In all such municipalities having a population of ten thousand, or more, according to the latest available federal census, there shall be seven aldermen, and the municipality shall be divided into six wards with one alderman to be elected from each ward and one from the municipality at large. The municipal authorities may establish as many voting precincts in each ward as may be necessary and desirable. The mayor of the municipality shall be elected from the municipality at large.”

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COMPENSATIONMS AG OP. , CUSTOM (JANUARY 20 , 2017)

MS AG OP., CUSTOM (JANUARY 20, 2017)

• Question: Can the municipality legally pay the previous commissioners for work performed after their term of office?

• Answer: No.

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MS AG OP., CUSTOM (JANUARY 20, 2017)

• “While all official actions of those individuals acting as commissioners are valid [Mississippi Code Annotated Section 25-1-37 (Revised 2010)], de facto officers are not entitled to claim any compensation. MS AG Op., Perkins (June 27, 2014); MS AG Op., Hall (August 31, 2012); MS AG Op., Taplin (July 27, 2007). Please also see MS AG Op., Miller (January 20, 2017) enclosed.”

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ELECTION CONTESTMS AG OP. , SNELL (JANUARY 28 , 2016)

MS AG OP., SNELL (JANUARY 28, 2016)

• Question: May the Board of Supervisors hire counsel to represent the election commission in pending litigation under Section 19-3-47(1)(b) if an attorney has already been hired and approved under Section 23—15-219(1)?

• Response: Yes.

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MS AG OP., SNELL (JANUARY 28, 2016)

• After the board finds there to be a county interest in the litigation, may the board then direct the attorney hired under Section 23-15-219(1) to withdraw as counsel for the election commission in the election contest case?

• Response: No. Only a court of competent jurisdiction can approve the withdrawal of counsel.

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VOTER REGISTRATION DEADLINES

MS AG OP. , HOSEMANN (OCTOBER 5 , 2016)

MS AG OP., HOSEMANN (OCTOBER 5, 2016)

• In order to be eligible to vote in the November 8, 2016, General Election, persons registering to vote in person in the appropriate circuit clerk’s office and mail in voter registration applications submitted in person to the appropriate circuit clerk’s office must be done by 12 noon on Saturday, October 8, 2016.

• Mail in voter registration applications mailed to the appropriate circuit clerk’s office must be postmarked on or before October 8, 2016.

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VACANCIESMS AG OP. KESLER (MAY 29 , 2015)

MS AG OP. KESLER (MAY 29, 2015)

• Question: If an unopposed candidate withdraws her name from the election, does the county have the authority to set a special election for the full term on the upcoming general election date?

• Answer: “A vacancy does not exist for the term beginning in January 2016 until the current term has expired; therefore, we find no authority to conduct a special election for that position in November 2015.”

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SUFFICIENCY OF QUALIFYING PETITION MS AG OP. , WHITE (AUGUST 26 , 2016)

MS AG OP., WHITE (AUGUST 26, 2016)

• Question: Is a qualifying petition valid if it lists the incorrect district?

• Answer: It depends.

• Compare: • Neshoba County (MS AG Op., White (August 26, 2016)) • City of Southhaven (MS AG Op., Sorrel (March 23, 2009))

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MS AG OP., WHITE (AUGUST 26, 2016)

Since there is no at-large county election commission office, voters signing the candidate petition are “not likely to be misled” if the district number on the petition is incorrect, as evidenced by the fact the requisite number of signatures on the petition are by qualified electors of the district in which the candidate resides. Therefore, the board of supervisors, exercising its authority to determine the sufficiency of the petition, may find that the petition is valid, subject to judicial review.**This opinion will have very narrow application.

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MUNICIPAL POLLING PLACES

MS AG OP. , S T . PE’ (APR IL 22 , 2016)

MS AG OP., ST. PE’ (APRIL 22, 2016)

• Question: Is the City required to have the same number of polling places as wards?

• Answer: “No We find no statutory requirement that the City have the same number of polling places as wards.

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MS AG OP., ST. PE’ (APRIL 22, 2016)

• Question: Does the City have the legal authority to pass an ordinance dividing the entire city into 3 precincts and reducing the number of polling places to 3?

• Answer: “Yes. Section 23-15-557 authorizes municipal governing authorities to divide the municipality into a sufficient number of voting precincts “as is necessary” and it requires that there are the same number of polling places as there are precincts.”

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MS AG OP., ST. PE’ (APRIL 22, 2016)

• Question: Does the City have the authority to create one (1) precinct for the entire city and have one precinct for voting for the entire city with the understanding that the one (1) precinct would be partitioned or divided by wards?

• Answer: Yes. “Section 23-15-221 clearly contemplates that a municipality may have only one (1) precinct.”

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APPOINTED CITY CLERKSMS AG OP. , BURCHAM (SEPTEMBER 1 , 2016)

MS AG OP., BURCHAM(SEPTEMBER 1, 2016)

• Question: Is there a need for the position of city or town clerk to be on the ballot in the upcoming 2017 municipal elections for which qualifying begins in January of 2017, before the effective date of HB 130?

• Response: “There is no need to include the position of city or town clerk on the ballot for the upcoming 2017 municipal elections because from and after July 1, 2017, the municipal governing authorities will be required to appoint a municipal clerk at their first regular meeting of the new term which must necessarily occur on or after July 3, 2017.”

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DUTIES OF ELECTION COMMISSIONERS

MS AG OP. PH I LL IPS AND NOBLE (OCTOBER 7 , 2016)

MS AG OP. PHILLIPS AND NOBLE (OCTOBER 7, 2016)

• Question: In performing our duties on election day and night at the election center, what are our limitations, if any, as Election Commissioners if we have an opponent? Are we allowed to participate in checking affidavit and absentee ballots?

• Answer: “We find no statutory limitation on election night activities off election commissioners who have opponents; or in the processing of affidavit ballots; or canvassing and certifying the results following the election.”

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DISENFRANCHISING CRIMESMS AG OP. , HEGGIE (JULY 9 , 2009)

MS AG OP., HEGGIE (JULY 9, 2009)

“Based on Section 241, Cotton, and other legal authorities, this office has now identified twenty-two crimes that should be considered disenfranchising. They are: 1) Arson; 2) Armed Robbery; 3) Bigamy; 4) Bribery; 5) Embezzlement; 6) Extortion; 7) Felony Bad Check; 8) Felony Shoplifting; 9) Forgery; 10) Larceny; 11) Murder; 12) Obtaining money or goods under False Pretense; 13) Perjury; 14) Rape; 15) Receiving Stolen Property; 16) Robbery; 17) Theft; 18) Timber Larceny; 19) Unlawful Taking of Motor Vehicle; 20) Statutory Rape; 21) Carjacking; and 22) Larceny Under Lease or Rental Agreement.”

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MISCELLANEOUS OPINIONS

MS AG OP., BERRY (AUGUST 23, 2013)

• A voting precinct may include portions of three supervisors districts. In accordance with Mississippi law, the precinct shall have only one polling place. Furthermore, precincts must be drawn in compliance with the provisions found in Miss. Code Ann. Section 23-15-281 and 23-15-285.

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MS AG OP. CHISM., (AUGUST 12, 2016)

• It is the opinion of this office that the Legislature has negated any authority of local sheriffs regarding regulation of firearms in courthouses. However, a sheriff would be bound by a court order until the order is modified or reversed on appeal. The authority and limited scope of counties with regard to regulating firearms in courthouses are governed, in our opinion, under Section 45-9-51 and Section 45-9-53.

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HELPFUL WEBSITES

Overviewhttp://www.ago.state.ms.us/divisions/opinions-and-local-government-2/

Searchable Databasehttp://government.westlaw.com/msag/

THANK YOU!

Questions?Contact:

Phil Carter: 601-359-3753Beebe Garrard: 601-359-4203Reese Partridge: 601-359-3852

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